Marijuana Legalization and Nosy Neighbor States

Marijuana Legalization and Nosy Neighbor States

Article excerpt

INTRODUCTION

For the better part of the past two decades, the prospect of federal interference has been a pressing concern for state marijuana legalization laws. After Californians approved the first modern medical marijuana legalization ballot measure in 1996,1 the federal government did all that it could to stop the law in its tracks. Drug Enforcement Administration (DEA) agents conducted armed raids of medical marijuana collectives2 and federal prosecutors sent some of the operators to prison with lengthy mandatory minimum sentences.3 The Department of Justice (DOJ) successfully litigated two medical marijuana cases all the way to the Supreme Court. In United States v. Oakland Cannabis Buyers ' Cooperative in 2001, the Court held that federal anti-marijuana laws do not recognize a medical necessity defense.4 In Gonzales v. Raich in 2005, the Court held it was within the commerce power for Congress to criminalize intrastate possession and cultivation of small amounts of marijuana.5 Federal officials even threatened to yank the DEAprescribing license of any doctor that recommended medical marijuana, though the Ninth Circuit blocked that plan on free speech grounds.6

Despite its best efforts, however, the federal government was not able to stop the trend. Throughout the 2000s, more and more states passed medical marijuana laws and marijuana stores started opening faster than the federal government could shut them down.7 By the time Colorado and Washington passed the first laws legalizing marijuana for all adult use in 2012, it was clear to most observers that the federal government was fighting a losing battle.8 It had the legal authority and resources to be a thorn in the side of the states, but it did not have the manpower to prevent states from implementing medical and recreational legalization laws. In recognition of this dynamic, the DOJ announced a cease-fire in its war on state-legal marijuana in late 2013, in the form of a memorandum advising federal law enforcement officials not to use scarce resources to go after people in compliance with state marijuana laws.9

Just as the threat of federal interference began to subside, however, a new problem presented itself: nosy neighbors. In late 2014, Oklahoma and Nebraska sued Colorado in the United States Supreme Court, invoking the Court's original jurisdiction over lawsuits between states.10 In their lawsuit, Nebraska and Oklahoma described the impact of Colorado's marijuana le- galization law in dire terms, claiming it was a "direct assault on the health and welfare of Plaintiff States' citizenry."11 Oklahoma and Nebraska claimed that they had experienced "a significant influx of Colorado-sourced marijuana" following legalization and asked the Court to strike Colorado's law down under the Supremacy Clause.12 The Supreme Court declined to hear the case but its publicity has helped shine a light on an issue that has gone under-examined: the horizontal federalism implications of marijuana legalization.13

As more states move forward with marijuana legalization,14 how should the law accommodate states that want to retain prohibition? Undeterred by Nebraska and Oklahoma's unsuccessful lawsuit, a group of sheriffs from Nebraska, Kansas, and Colorado have taken up the cause of trying to completely shut down Colorado's law on preemption grounds.15 Their case against the Governor of Colorado is currently before the Tenth Circuit Court of Appeals, after being dismissed by the District Court.16 Those who oppose marijuana legalization in their own states, however, are not limited to attempting to block them in others. Scholars have argued, for example, that courts should "award damages to prevailing sister states, compensating them for the injuries inflicted by the incursion of [state-legal] marijuana into their territory."17 Like the Oklahoma and Nebraska lawsuit, this proposal rests on the premise that marijuana legalization will cause a noticeable impact in neighboring states. …